German Federal Constitutional Court upholds the constitutional complaint regarding the UPC for lack of qualified majority vote: is there still a chance for the UPC?

In its order released on 20 March 2020, the Federal Constitutional Court (FCC) holds the act of approval to the Agreement on a Unified Patent Court (“UPC”) void due in particular to the lack of a qualified majority vote. While this decision delays the ratification of the UPC Agreement by Germany even further, the future of the UPC seems more than ever uncertain. However, in upholding the constitutional complaint on this ground, a future ratification of the UPC Agreement by Germany still remains possible.

Missing qualified majority vote

As the FCC reminds, the act of approval of the UPC agreement had been
adopted unanimously by the German parliament in March 10th, 2017,
but only about 35 of the 631 members of the Bundestag
were present.

Inasmuch as the adoption of the UPC agreement constitutes an amendment
to European integration process provided for in the Treaty of Lisbon, the FCC
approved the constitutional complaint finding the act of approval amending the
German Constitution in substantive terms.

Such substantive amendment of the German Constitution is subject to a qualified majority vote of the two-third of the Members of Parliaments pursuant to Article 23(1) in combination with Article 79 (2), third sentence, German Basic Law.

Three judges of the FCC have expressed a dissenting opinion in this
respect, explaining that such reasoning would lead to requiring such qualified
majority vote for most of the changes in law in the context of European
integration.

Inadmissibility of all the other grounds of the
constitutional complaint

If the FCC has upheld the constitutional complaint on this ground of the
necessity of a qualified majority vote, the Court has held inadmissible the
three further grounds of the complaint without formally and fully addressing
them.

However, the FCC briefly gave the perception of its position on those
grounds.

As a reminder, the complaint concerned the legal status and selection of
the UPC judges, the insufficient legitimisation of the Unified Patent Court and
the incompatibility of the UPC with EU law. In a nutshell, the FCC has stated
concisely that none of these grounds as presented in the constitutional
complaint could succeed.

This does not exclude the success of a new constitutional complaint after a new vote by the German parliament. It is notably interesting to see, that the FCC based its reasoning on the fact that the UPC is conceived as a body which depends on the treaties and regulations governing the law of the European Union.

Next steps for UPC in Germany

With regard to the order of the FCC, the German parliament will have to proceed to a new vote of the act of approval, with a two-thirds majority of the Bundestag. Regardless of the question of the parliamentary majority regarding European questions, in the current situation in Europe and Germany one maywonder whether a new vote of the act of approval would be put on the agenda of the German Bundestag within the near future.